Less esteem for future class of judges that's more 'professional' ?

BySeth SternMarch 7, 2002

William Rehnquist, chief justice of the United States, doesn't want lawyers spending too much of their career in the judiciary. In his annual report on the federal judiciary, Justice Rehnquist warned that judges may lose the respect and independence they enjoy if they are drawn exclusively from jobs in government and lower courts.

In much of continental Europe, South America, and East Asia, lawyers enter a national judicial service early in their careers and gradually work their way though the court system. Judges are clearly an arm of the state, and a centralized hierarchy decides who will be promoted. In contrast, American lawyers traditionally became judges after decades of practice in the private or public sector.

These judges were equally likely to jump to the bench from private practice as from posts as public prosecutors, government lawyers or lower court judges. But in the last decade, lower salaries and lengthy confirmation battles have pushed the proportion of judges coming from the public sector up to 60 percent. What Prof. Sheldon Goldman of the University of Massachusetts calls the "professionalization of the judiciary" has attorneys around the country worried about losing the judiciary's traditional diversity.

"One of the strengths of our system is that being a judge is reserved for people with extensive experience as a lawyer and a diversity of backgrounds," says Martha Barnett, former president of the ABA.

In civil-law countries, judges tend to lose autonomy over their own courtrooms. For instance, European judges don't have the power to discipline unruly lawyers, says George Fletcher, a professor at Columbia Law School. Hierarchy also breeds caution among judges fearful of jeopardizing career advancement.

Legal observers say the American judiciary is unlikely ever to resemble that of civil-law countries even if the range of professional backgrounds narrows. The United States Constitution provides far more autonomy to judges, who enjoy lifetime tenure and aren't beholden to superiors. It's also not clear whether a professional class of judges would lose prestige in American law, where the judge is so central, and law students study cases written by individual judges. European lawyers, in contrast, learn from articles and textbooks.

And just as professional experience is narrowing, the federal judiciary is becoming more diverse in other ways. As of 2001, a third of federal judges were women or members of racial minorities, a 68 percent increase over a decade earlier.